Jump to main content.

Go Back Chapter 8 Overview 
8.2  When property owners do not want to comply Go Forward

8.1 Inspection and Enforcement of Conservation Easements

In general, conservation easements have short- and long-term costs for acquisition, management, and enforcement. In addition to the purchase price, the transaction costs of obtaining an easement can be thousands of dollars.[549] For the typical conservation easement, a careful baseline environmental assessment is done at the beginning of the process,[550] and once the easement has been legally executed and recorded in the local land records office, the easement holder will visit the property on a periodic basis, usually annually, to ensure that the landowner is complying with the terms of the easement.[551] If violations are discovered, the easement holder will attempt to negotiate a satisfactory solution, and if that fails, go to court.[552] Although managing and enforcing easements is one of the core activities of many land trusts, the expected costs of doing so often deter them from accepting easements from every potential donor.[553]

A key challenge is to design rolling easements so that their annual inspection and management costs are substantially less than the costs for the typical conservation easement, because rolling easements will often involve smaller parcels whose environmental benefits are decades or centuries in the future. How to best address that challenge will depend on whether one is attempting to allow a beach to migrate inland, or to ensure that a large low area is eventually submerged to become wetland. Shore protection structures are easily noticed from the water or a walk along the shore, which could keep inspection costs low along eroding beaches. But grade elevation can be more difficult to detect unless someone sees the material brought in or surveys the land elevation.

Table 6. Partial List of Provisions for a Shoreline Migration Conservation Easement

  1. Landowner (or easement holder) conducts an initial survey of ground elevations.
  2. Owner promises to avoid increasing the grade elevation of any land before it becomes submerged, and to avoid erecting any shore protection structures that have the effect of preventing shore erosion, flooding, or inundation of the land on the parcel. No foreign materials for grading will be brought into the property other than gravel required for construction.
  3. If grade increases are discovered by the holder or the landowner more than 30 years before the land is expected to be submerged, the other will be notified. The parties will negotiate in good faith a schedule for re-grading the land back to baseline elevation as soon as practicable, but in no case less than 10 years before that part of the land is expected to become submerged. If grade increases are discovered by the holder or the landowner less than 30 years before the land is expected to be submerged, a similar process applies, but the deadline for re-grading will be the midpoint between the discovery and the time when the property is expected to be submerged. The landowner will pay all costs associated with the violation.
  4. Landowner will obtain a new elevation survey from a qualified surveyor before any subdivision, and immediately after construction of any buildings larger than 200 square feet, notify holder of the construction and provide a copy of the survey.
  5. An elevation survey will take place before the land is sold, with buyer notified of any discrepancies between current and baseline elevation.a
  6. Landowner will notify holder if and when any part of the property is flooded by spring high tide or tidal wetland vegetation is found.
  7. Holder will notify landowner if and when holder reasonably expects the land will become submerged within the next 20 years, and propose a date for inspection funded by holder within 1 year of such notice. Holder will also propose to landowner a schedule of future inspections no more frequent than once per year and no less frequent than once per decade until the property becomes submerged.

a. This requirement protects the buyer.

Less frequent inspections may be a way to keep costs low.[554] Table$nbsp;6 provides an example list of provisions that could be included. In this case, the environmental benefits of the rolling easement are decades (or centuries) in the future, and each easement is likely to cover a relatively small area of land. Ordinarily a land trust would be very satisfied if the annual management cost was $250 per easement because the lots tend to be fairly large. But in the case of a rolling easement, if the lot is originally hundreds of acres, it can generally be subdivided. In a typical coastal area with quarter-acre lots, a cost of $250 per parcel would be $1,000/year per acre. Although the environmental services from an acre of marsh might justify management costs of $1,000/year,[555] it would be virtually impossible to justify spending that much to ensure that an acre of wetlands could be created 100 years hence: At a 3 percent rate of return, for example, $1,000/year would accumulate to $625,000 per acre after a century—far greater than any estimate of the value or restoration cost of tidal wetlands. Therefore, the cost of managing rolling easements on land that is still decades away from being submerged must be far less than $250 per parcel.

It should be possible to design rolling easements so that the annual cost is much lower than with standard conservation easements:

Why would a rolling easement require less frequent inspections? Primarily because violations need not be discovered immediately to achieve the conservation objective. [557] The typical conservation easement is transferred to ensure a continuing environmental contribution from the property; so it warrants a detailed annual inspection. Rolling easements, by contrast, are transferred to ensure that the land eventually becomes submerged.

If the rolling easement prohibits elevating the land so that wetlands can migrate inland, then when the submerge date arrives, the land elevation must not be higher than it is today. But if the owner does elevate the grade, it does not matter when the problem is discovered, as long as it is noticed several years before the submerge date so the land can be re-graded down to the original elevation. Occasional communication is advisable to discourage violations and explain the consequences; but that is less costly than on-site inspection. (An inspection upon sale of the property is advisable to avoid litigation over responsibility for undiscovered grade elevation.)

Once a property is finally threatened by the rising sea, the environmental benefits of the rolling easement will be more imminent and justify a greater management cost. By the time the low-lying land becomes submerged, the landowner is likely to be different from today, and the prospect of losing a home could provide a substantial incentive to cheat on the terms. Thus drafting an “endgame” is important for a rolling easement (see Chapter 9), unlike most conservation easements, where provisions for termination would threaten the tax deductibility.[558]

[549] See, e.g., Heritage Conservancy, supra note 445, at 8.

[550] See, e.g., id. at 14 and Leslie Ratley-Beach, Managing Conservation Easements in Perpetuity, Land Trust Alliance 66 (Washington, DC 2009).

[551] Heritage Conservancy at 30; and Ratley-Beach at 70.

[552] Heritage Conservancy at 8 and 31; and Ratley-Beach at 255–314.

[553] Land trusts typically solicit a donation from the landowner in order to offset some of the expected cost of monitoring and enforcement. See, e.g., Jessica E. Jay, Land Trust Risk Management of Legal Defense and Enforcement of Conservation Easements: Potential Solutions 6 Envtl. Law. 468 note 111 (2000) and Land Trust Alliance, Practice 11A: Funding Easement Stewardship, in Land Trust Standards and Practices 5 (2004) (costs of managing an easement can be significant, a land trust can not accept a conservation easement whose environmental benefits are small compared to the cost of managing the easement).

[554] Here we are referring primarily to shoreline migration conservation easements created to ensure that wetlands gradually migrate onto nearby low land. Shoreline migration easements that prohibit shoreline armoring along eroding beaches would be very easy to inspect.

[555] E.g., R. Costanza, S.C. Farber, & J. Maxwell, Valuation and Management of Wetland Ecosystems, 1 Ecol. Econ. 335 (1989) (reporting that annual services from wetlands in Louisiana are about $250–$500/year). Frederick Bell, The Economic Valuation of Saltwater Marsh Supporting Marine Recreational Fishing in the Southeastern United States, 21 Ecological Economics 243–254 (1997) (annual services of about $125 and $800/year from west and east coasts of Florida, respectively).

[556] Although the purpose of a rolling easement is to prevent shore protection, Chapter 6 includes some possible restrictions landward of the rolling design boundary, or more precisely, landward of the primary design boundary but seaward of a rolling setback line. If such restrictions are included, inspections would have more to look for and hence require additional effort.

[557] In addition, owners generally have little incentive to violate a rolling easement decades before the submerge date.

[558] A conservation easement typically has unlimited duration, unless the instrument creating it says otherwise. See, e.g., Uniform Conservation Easement Act, National Conference of Commissioners on Uniform State Laws (1982). To be eligible for federal tax benefits, the restriction must be in perpetuity. I.R.C. §§ 170 (h)(2)(C), 170(f)(3)(B)(iii), & 170(h)(5)(A).

Go Back Chapter 8 Overview 
8.2  When property owners do not want to comply Go Forward

This page contains a section from: James G. Titus, Rolling Easements, U.S. Environmental Protection Agency. EPA‑430‑R‑11‑001 (2011). The report was originally published by EPA's Climate Ready Estuary Program in June 2011. The full report (PDF, 176 pp., 7 MB) is also available from the EPA web site.

For additional reports focused on the implications of rising sea level, go to Sea Level Rise Reports.

| Ways to Create a Rolling Easement | Legal Authority? | Tax Consequences | The Endgame| Glossary| Just the Graphics

Local Navigation

Jump to main content.